*1 v. ROSS. RAILROAD MILWAUKEE CHICAGO & оf Statement Facts. informed counsel, arewe .a involved,
sale directly reached. docket, suit our yet distinct remanded, the cause reversed, be must The decree the decree below to set court directions aside. sale, to order is prosecuted, which this appeal in such demands,.and the complainants' of satisfaction court with the practice consistent" mode as map of which the outside pant upon lot 7 law, and with of of stands. Market as the Palace known building RAILWAY ST. MILWAUKEE PAUL CHICAGO, v. ROSS. COMPANY FOR THE THE UNITED STATES THE OF IN ERROR TO CIRCUIT COURT OF DISTRICT MINNESOTA. Argued December April 14, 1884.Decided employes corporation responsible to train servants A railroad neglect duty by injuries consequence them in a train con- received - train, movements, right charge with tbe to command its ductor in persons employed upon and control the it. right of a railroad who has thе to command the movements A conductor it, represents employed upon the train to control duties, performing company while those and does not bear the relation of employes corporation fellow-servant other train. This an action a locomotive -. brought by engineer, in error, below, defendant to recover employ received a collision which was caused damages the conductor of the train. nn The facts connected with circumstances are set forth court. At below, the trial several opinion questions arose whose Court below was determination assigned error and which here. For the argued purposes it is notice the por- two opinion necessary following tions of each of which ivas excepted charge jury, to: OCTOBER TERM,
Argument for Plaintiff in Error. I if thе blear, think, It is sees fit very (1) under one of its the control direction employes n the two are that then not fellow-servants another, *2 common within the same employmént, meaning " I am of law of rule speaking.” “ as I order, this understand and (2) By general gentlemen, in made the an construe it, engineer, important subordinate the conductor.” sense, to in the second clause was as The order referred follows: “ in all while must, Conductors cases, running by telegraph show same their 'orders, trains special engineers are where the orders before stations received. The en- leaving and understand the order before must read gineer leaving station.” to reverse which plaintiff, defendant,
Judgment out in this writ. sued error, plaintiff court erred Mr. in John W. in Cary plaintiff error. The that conductor 'and the charging jury plaintiff in fellow-servants or the same co-emplóyés general engaged business. This decision of this court charge prior in Randall 109 U. v. Baltimore Ohio S. Railroad, & wa§ is in direct conflict with it. That action an brake man for an received alleged negligence through of another train of same The . company. court Nor is it case, of this say: necessary, purposes to undertake to definition down a and exhaustive lay precise rule in general this or to conflicting weigh respect, views States; in have of the several prevailed the courts because such a one another relation to standing did this and the are the other engineman fellow-servants, according very great preponderance judicial this as well as the course authority uniform country, m decision the House of Lords, and in the and Irish English . . courts. They same master. employed paid by the The duties of. the two them to at the same work bring at the same time, so of one doing work the other in Their his work. injure doing separate CHICAGO & RAILROAD ROSS. 379 MILWAUKEE v.
Argument for Plaintiff Error. common services have immediate object, moving trains.” rule now established England, generally ” term “fellow-servant includes all country, under the master, control, who serve the same work same de rive from the same and are source, authority compensation in the same business, be in though may different it. Wonder v. Baltimore grades departments & Railroad 32Co., Ohio Wilson 411; L. Maryland, Merry, 1R. H. L. Sc. Columbus 326; & Railroad v. Indianapolis 174; Ind. Arnold, Warner v. Erie 39 N. Y. Railway Co., 468; Hard v. Vt. & Canada 32 Vt. Railroad, 473, 480. The fact that the servant subordinate to injured negligent and under servant, his- makes no difference. control, Wharton, Law of 229; Servant, Master Wood, 437; Negligence, § § Torts, 543-4; Sherman Redfield Cooley.on Negligencе, *3 It is true of Ohio and seem that the.States Kentucky § not to have this but current au rule; followed both in is as above thorities, England, country of author cite mass stated. We great following R. R. 49 N. Y. C. N. Y. Co., v. ities on the subject: Laning 64 5,Y. v. 8; v. N. Crispin 521, Hathaway, Malone 528; R. Co., Lawler v. R. 62 516; Androscoggin Y. 81 N. Babbitt, Co., R. R. 70 Me. Le 60; Maine v. Central ; Me. 463 Blake 432; Brown v. 86 Penn. St. Winona Jones, v. Coal Co. high Valley 162; v. Coal & Minn. Co.,27 Peter R. R. & St. Peterson above cited. The v. Merry, 50 ; Wilson Co., Iowa, 673 Mining Robertson Terre 61; Y. v. 85 N. Jewell, v. of Slater cases L. & N. St. 77; Chicago, Ind. Railroad, &c., 78 Haute, are es R. R. Cases, v. &Am. Railroad Doyle, Eng. O. R. Smithson, R. v. also Cent. Mich. point. See pecially R. R., Sioux City v. Paul & Clark St. 212; 45 Mich. 119 Mass. R., v. R. 128; Ladd New 28 Minn. Bedford 53 Wisc. Railroad, N. W. 412; Naylor Chicago if ser “Hence, latter case the court say: 661. In the the busi hazards of vant, employment knowing business, such is is while conducted, employed ness injured in master for such an action maintain he cannot against that there was able to show because may merely jury, TERM; Opinion of the Court. conducted, safer mode in which the business have been might that had it been conducted in that mode he would been have injured.”
. Enoch defendant in error. Mr. Totten Field delivered the of the court. Justice opinion
Mr. Minnesota, in the The court below a citizen plaintiff defendant train. The "by occupation engineer railway cor court below, here, error railway plaintiff action is created under of Wisconsin. This the laws poration sus to recover brought damages with a tained whiist a collision train by engineer freight a. train on the Both trains be 6th of November, gravel been he had em and forr some longed years as such he was in on its roads. On engineer day ployed' Min train left charge engine regular freight at a one in neapolis quarter past morning, regular had time, schedule road over trains, gravel right otherwise collision, ordered. At the time of the except when one McClintock was the conductor of the had train, and entire it. It was his under the charge running duty regula: tions of the to show to the all orders which engineer he received with to the movements of the train. respect The in this follows: Conductors must regulations respect cases, all when show running by orders, telegraph special the same to the of their train before stations engineer leaving the orders are received. The read and must understand the order before the station. conduc leaving *4 tor will have and control of train, the charge of all persons on it, and is for employed its movements while on responsible road, the when his directions conflict with these except regula tions, involve risk hazard, case the will also held responsible.”
When the train left on the freight Minneapolis morning 1880, 6, November there was toward that from city coming Fort order road, the a over same ig, by SnelK termed the train, -a wild- that a train, gravel complaint RAILROAD v. ROSS. 381 CHICAGO MILWAUKEE the Court. Opinion on time not schedule The train any regular trips. running from McClintock, informed conductor, by telegram the. this ordered train, train dispatcher coming gravel until the train at South the to hold Minneapolis freight gravel is between arrived. South train Minneapolis Minneapolis and. the The train had' collision the where occurred. gravel for a before the week night been hauling gravel Mendota, from near the construction a pit Minneapolis line of railroad a new between the separate train had, and the and. St. Paul freight during Minneapolis, conductor, the on orders of the train dis- been time, stopped by and St. Paul tracks between side Minneapolis patcher, But on train. Junction, for passage gravel night to deliver to the 6, he plaintiff of November neglected train had and after the started he went received, order he train and there fell into the caboose freight asleep. but did at course at the station designated* stop continuing narrow cut of fifteen miles an entered a hour, deep speed (cid:127) at' 300 feet road consid- passed length, through on curve, and a down when saw erable grade, plaintiff a reflection of the the bank engine gravel light direction,at a which was opposite approaching then within about one and was of five or sixmiles an hour, speed hundred feet. lie at once for brakes reversed whistled but a collision almost immediately followed,-destrоying engine, trains, the two cars of engines, damaging causing, death of one severeand- person, imficting upon this action. which he permanent brings injuries, train testified that On the trial conductor of gravel run to at time the collision he under orders to South that train; of the plaintiff’s Minneapolis regardless having train before cars loaded with stalled reach? twelve gravel, his. he cut the collision then happened; sepa- ing Station, took six cars to middle, his train Minnehaha rated com- cars, other six and was went back with engine occurred; thé cut when the collision with them through ing week, had run in the and’ train about gravel night could reach before the time starting that when Minneapolis *5 TERM,
Opinion of the Court. train he ran without of orders, otherwise plaintiff’s upon orders, had met or train at the same passed plaintiff’s about- place the week. every night during is from this
.It evident brief statement that the conductor on train was each guilty The gross negligence. conductor of train was not freight by 'required general duty on him, as one its to devolving movements, controlling to give its such orders as would enable him to avoid collision with other but as we cars, have he seen, was expressly directed regulations when- -running by telegraph to orders, communicate them to him. special Had these been with, collision would regulations complied have been- avoided. The conductor of the train allowed it to be gravel at, so overloaded'that engine incapable moving one of the road before portion cut; when, reaching he was half of to-leave his on consequence, cars obliged track while he took the others to he Minnehaha, оmitted to sénd forward information of the out delay to-put signals for week Having passed danger. previous, freight the-road, train at he same must have nearly known that there was of collision. Ordi- delay danger would have therefore, dictated the nary prudence, sending forward of of his or the information out, position putting, he done either these Had the col- danger signals. things lision would not have occurred.
The collision been caused by gross -having negligence- whether arises conductors, is question company which that for collision responsible injuries n inflicted him. upon railroad injuries, its servants, caused passengers all others It covers its service conceded. injuries But do not contribute. befall a servant in its a different employ, principle applies. Having services, been he takes specified performance himself- á risks thereto. As con- incident ordinary them, if cannot he suffers recover sequence, exposure The obvious reason from his for this compensation employer. ROSS. *. RAILROAD & MILWAUKEE CHICAGO Opinion of- the Court. have has, or, law, that he them supposed -and that service, when he engages contemplation *6 He cannot, reason, accordingly. arranged
compensation a risk he has from which as- if he suffers voluntarily complain he is of There is sumed, paid. assumption this often for reason assigned exemption also another —that It that is assumed exemption policy. supposed- public caution on the a stimulant diligence part as operates his as that of his master. for own well safety servant fact to this reference to is ascribed assumed Much potency bn the and caution servants those cases part diligence But it accidents. the chief constitute against may protection the effect thus claimed whether has be doubted the exemption more it. We have known subject never parties willing if because, one, or limb themselves losing dangers life be recovered their could other, or suffering damages The dread for the loss themselves injury. representatives sufficient to into has injury always proved bring personal exercise servant. activity vigilance this it be, But however to the em- indispensable may from to his servant for the exemption conse- ployer’s of risks thus that he should incurred, himself be free quences He must furnish the servant the means and' negligence. service for its efficient and safe requires appliances unless otherwise and if he in that stipulated; fail performance, he is as liable to result,' the servant as he respect, In wоuld be to a other words, whilst such strabger. claiming he must not .himself guilty contributory negligence.
When the service to be rendered its requires performance several movement of rail- employment persons, there is incident the service of each trains, necessarily way the risk that the others fail in the and caution vigilance been his And has held in numerous essential to safety. and in is im- cases, both .in there country England, of service in in his contract such takes cases, plied himself risks of his fellow- arising in while same servants, always employment, provided OCTOBER TERM, of the Court.
Opinion
in their
retention,
master is not
selection or
or in
negligent
materials and means for the work; and
adequate
furnishing
that if
then befall him from such
the master
negligence,
first
is-not
The doctrine was
announced in
hable.
this country
of South Carolina
Court
1841,
.by
Supreme
Murray
v. S. Railroad
Co., McMulan,
C.
was affirmed
Court of Massachusetts the
year Farwell
Supreme
following
v. Boston and Worcester Railroad
. In the case, Massachusetts an a rail- engineer employed by road to run a train its road was the' company injured on aof switch-tender also-inits and it was held negligence employ, that the was not The court liable. ex- placed-the not on the Caro- of South emption ground lina decision, that there was a the fellow- joint undertaking by servants, but on the that the contract of the ground that he take himself implied would the risks upon attending that those included the be- performance, might him fall of same fellow-servants and that the switch-tender that relation employment, stood (cid:127) him. And the added, court that the of the mas- “ ter was of considerations Where several supported policy: “ it said, are рersons,” conduct of common employed one and the of on enterprise undertaking, each safety depends CHICAGO RAILROAD MILWAUKEE v. ROSS.
Opinion Court. which each other shall care skill -with perforin is an observer of conduct of the each duty, appropriate misconduct, notice of can incapacity others, neg give if common service, lect of and leave employer duty, will such the, not take such employ agents precautions these the whole means may require. By safety party more will be much each secured than safety effectually a resort the common could be done for indem-' employer in case of loss each other.”- And nity strongly pressed, argument,’which though-the rule, where two or more servants are might apply employed where each one the same can exert department duty, some thus, the conduct of other, influence over to some ex for his own that it tent, could not provide security, yet, apply two or are more different employed departments4of at í distance from each other, and where one can in duty, no control or influence the conduct of another, degree answered, founded distinction, supposed upon objection difficult to which it be would establish practical extremely “ rule; it said, be is one When the accomplished,” object same, and the the sev when same, employers their and their derive authority compen eral employed it would difficult' source, from the same extremely sation one constitutes what what department to distinguish would circum It vary distinct duty. department “that it’added, case.” And stances argument every .the which does assumed responsibility rests principle is not case master, exempt exist. The supposed, *8 better méans has the servant provid because liability from in immediate connec he is for his when employed ing safety, but suffer, he might whose tion with those from negligence master, not extend to does because contract of the implied one but of any servant negligence against indemnify as for the tort, negligence he is not liable himself; and towards does stand not his because the servant, person suffering is one but whose rights a him in relation of stranger, 4 60. 59, Met. contract, implied.” by express regulated Jus- Chief was delivered case, The opinion vox,. cxii —25 TERM,
Opinion of the Court. has influence in exerted Shaw, tice great the course controlling in this In several it- of decisions States has been fol- country. courts havе cited it lowed, marked com- English mendation^ of the
The doctrine master’s from was liability first, in 1850 the Court of announced distinctly England v. Newcastle & Berwick York, Hutchinson Exchequer R. 3 M & W. Foster, 1, Exch. Co., Priestley Railway the first is often cited as case which was decided in involve the doctrine, did not directly question' declaring a to a of a of master servant liability van defendant in which fellow-servant. In that case a was carried was out of overloaded plaintiff repair and caused the down, broke injury complained consequently it did the defect the van of; but not what appear produced it court in its whom was overloaded. The decis giving observed that if the master was ion liable, against to an would us carry principle alarming ” and in illustration of this statement said that if the extent; for its owner responsible carriage sufficiency under the servant, was, princiрle, responsible negli of his coach-maker or harness-maker gence or coachman, and mentioned other instances of such possible responsibility servant for the of his fellows, concluding inconvenience of such afforded* consequences a sufficient argu ment application to that against case. The principle (cid:127) case, can therefore, considered as indirectly asserting the doctrine. rate, Hutchinson At’'any case is the first one the doctrine it service. There applied railway that a servant of the appeared company who, discharge of his on one of duty, riding trains, was injured by collision with another train the same from which death and was ensued; held that his could representatives he was a recover, fellow-servant with those who caused cоurt said that injury; whether the death resulted of the one mismanagement train or the Or of other, not affect the did both, at principle. rule was applied that court to same time master builder liar exempt *9 v. RAILROAD ROSS. & MILWAUKEE 38? CHICAGO Opinion the Court. .of in his caused bricklayer the death employ bility other defective construction scaffolding by workmen, broke and at of which it work reason bricklayer killed. v. it thrown to Wigmore Jay, was ground Exch. that the servant
The doctrine assumes causing is, with servant that in the same employment injured, in a common in both are employment. engaged question what is essential to render therefore the service in all cases a common different ? which engaged employment has caused much conflict of And between this question opinion and often much vacillation of in courts, different opinion same court.
In Cо. v. and the Same Reid, Bartonshill Coal Company in 3d McGuire, H. L. decided Cases, 266, reported Macqueen were miners to work injured parties employed and the whose caused the a coal party, injury, pit, to attend which were let engine by they employed coal was raised out, mine brought down into the held had and it they they engaged dug; that of “The common,work, getting.coal pit. “ case, latter could not court said the miners,” perform their nor could their unless were lowered to work, part their the end of common labor be attained the coal unless raised to the of course at mouth, they got pit’s of their labor the workmen must lifted out close be day’s mine. who such Every person employ that, ment have all incident must been aware this was perfectly to it, and that the service was with necessarily aсcompanied entrusted with the machinery mighl; danger person Chan-, be' and fail in his Lord duty.” occasionally-negligent cellor latter who Chelmsford, gave principal opinion case, referred cases which the master’s previous had been sustained, said: In-the considera did tion of these cases it not become define necessary £ meant common what was the words any great precision service’ or ‘common employment,’ might perhaps of them. difficult beforehand to exact definition suggest TERM, of the Court. Opinion It is *10 in each howevei, case to necessary, particular ascertain whether the servants are fellow-laborers -in the same work, because, a servant be taken to have although to engaged encounter all risks which are incident to the service which he he cannot be undertakes, to yet expected anticipate those which to him on occasions to may happen foreign employment. Where servants, therefore, in engaged different depart ments of an committed duty, one by servant an upon other, carelessness in the course of negligence his peculiar work, not within the exemption, the master’s liability attaches in in that case the same manner as if the ser injured stood vants in no such relation to him.” The Lord Chancellor also commented some decisions Scotch courts, and others that of among v. The McNaughton Caledonian Rail Co., 19 Court Sess. Cases, 271, and1said that it might way “be sustained without with the conflicting English authorities, on the that the workmen in that ground case were engaged different totally Avork; the deceased departments being at the Avhо, time was joiner accident, en carpenter, the persons Avhose railway carriage, gaged repairing was his death were the occasioned, driver negligence engine who the switches.” And in arranged after, same case- Lord observations Brougham, mentioning that courts absolute and of the Scottish inflexi judge ble rule master case responsibility .from every releasing'the the fault of another where one servant is injured utterly said that it was Scotland, unknoAvnto the also laAVof utterly and added: To unknoAvnto the laAV bring England, ewe must this most within the there material men that must be in the the two servants same qualification, common common in the same Avork employment, under that common employment.”
Later in the extend the master’s ex- decisions courts English to cases Avherethe servant injured emption of a foreman or under the direction working superintendent, the latter not deemed to service of being grade change Thus, relation of the tAVO fellow-servants. Wilson Sc. decided L. R. H. L. House Lords Merry, MILWAUKEE RAILROAD v. ROSS. 389 CHICAGO &
Opinion of the Court. Court of Sessions of Scotland, appeal of a coal whose pit, sub-manager erecting the circulation of air underneath, Avhich obstructed. scaffold and in accumulation and led to an fire-damp exploded mine, Avasheld be a fellow-servant a workman jured - And laid the court doAvn rule Avith the injured party. not liable to his servant unless there Avas Avas the master in that Avhichhe had contracted on the master’s part if- not do, master, Avith the servant personally bound.to select work, proper'and- superintending do and furnish them with so, adequate competent persons that when he Avork; had done materials resоurces if the do, he had done per required all.that *11 it Avas not thus selected were sons guilty negligence, and he Avasnot consequen responsible negligence, courts, as in others in the ces. In this case, many English Avhose. work, of the foreman, manager superintendent Avashimself also a Avork committed, man with the laborers, direction other although exercising over the Avork. The of that case has been reasoning applied as contended so as to of a include, here, employes corporation from each ; and it other must be ad departments separated mitted that terms'“ common under late de employment,” and cisions the decisions in this England, country folloAving the Massachusetts case, are of very import. comprehensive It is difficult to limit them so as to say any persons employed aby whose labors railway the run may facilitate of its are not trains, ning hoAvever felloAV-seiwants, widely sep arated be their labors. See Holden Railroad Fitchburgh Mass. ., Co
But decisions, number and of such notwithstanding Aveight there in this are, of courts country, many adjudications great to cases felloA\r-ser learning Avherethe restricting vants are in the same and under the act engaged department, samé immediate direction and ; reason within the that, holding ;the and doctrine, such servants can consid be. principle ered the same common It how not, engaged employment. essential the decision of ever, to lay present controversy TERM,
Opinion Court. in all determine, cases, rule will what is to down if it even to do such an so. possible deemed employment, a clear distinction in our to be There made in judgment, their common relation to between servants of a principal, their no over others -with exercising supervision engaged corporation, and in the same them employment, agents corporation, and the control of a distinct clothed with management depart- in which their that of direction and ment, duty entirely the entire control and conductor, A having superintendence. different railway very occupies posi- management other subordinates brakemen, tion porters, is in and should be treated fact, as, He personal employed. .Whose it is Of corporation, representative to subordinate servants. This view of his relation responsible seems to us a reasonable and one, corporation just more care the selection of such insure thus agents, will to the servants under him security greater give the utmost their in an requiring vigilance on. employment obedience to his orders. unhesitating prompt part, rule which to such of one railway applies corpora- agents .The tion must all, every" apply many corporations operate several trains over hundreds of miles distances at day great' each under the control' and a con- direction of apart, being know ductor We appointed specially management. from the manner which that, railways operated subject rules and of the directors of the orders compa- the conductor nies, has entire control management *12 train to which he start, He directs it shall when assigned. at what it shall it. and at what stations shall run, speed stop, for what to its and essential suc- time, length everything cessful and all on it are movements, subjeсt persons employed to orders. In no terms is he a fellow- sense the proper and the servant with the firemen, brakemen, porters The latter are fellow-servants running engineer. train under his direction as he stands ; to them and observed in of and As represents corporation. in treatise on the Mr. Wharton his valuable Negli- Law. been that a corporation “It has sometimes said gence: CHICAGO & ROSS. 391 MILWAUKEE RAILROAD
Opinion of the Court. act to that it is servants, always by to im obliged unjust in to. cases where it is personal negligence pute impossible it to be But if this be true it negligent personally. would fipm to relieve all servants. liability true The corporations can-act is, that, view corporations only through superintend ing officers, those officers, with negligences to respect servants, other are the negligences corporation.” § in author, a. The refers to note, Brickner v. New York Central Railroad Co., 506, decided Lansing, in Supreme Court of New afterwards York, in confirmed the Court of ; 49 N. Y. and to Malone v. Appeals, 64 N. Y. Hathaway, 672 decided in the latter court, which are opinions expressed with his conformity views. These are it is opinions not, true, authoritative, for do not cover the they precise points but were rather judgment; to expressed distinguish ques tions thus from those then arising before the court. They'in however, a dicate, to a limitation disposition engraft doctrine as to the master’s his servants of their when a fellows, corpo ration is acts principal, through superintending agents. in the first the court A Thus, case, said: cannot corporation It act some struc personally. requires person superintend control purchase tures, cars, running employ all needful men, This discharge provide appliances. can When the be done directors themselves agents. act as such personally agents, representatives awethen head executive They master. corporations. Their acts are the acts of duties above corporation. described are the duties of the When di these corporation. rectors some themselves to other than appoint person superin tend and all for them, these then such perform executive duties appointee, equally themselves, corporation represents master all those And respects. perform though, ance of these executive a servant of duties, be, he is not in a co- co-servant, those corporation, respects ' n laborer, the common of those co-employé, acceptation terms, more than is a director exercises the same au who . thority.” Page *13 TERM, 1884.
3'92 Opinion oí the Court. in Malone v. in the Court Hathaway, And Appeals, “: Allen says Corporations necessarily acting by Judge those of various superintendence having agents, through authority delegated employ discharge departments, provide machinery laborers materials employes, direct and con service of corporation, generally the directors, and instructions from under trol powers well be corpora representatives regarded of its with the tion, duty, exercising charged performance within' the and, exercised discretion ordinarily by principals, These limits of the principal. authority, acting delegated for which the acts of the arе in such case acts corporation, must cases, Avith'in for whose corporation, neglect adjudged as to as Avellto the other servants of the company respond, are treated as the cor They general agents strangers. in the several committed to their care.” departments poration See also Corcoran v. Y. 59 Y. Holbrook, N. N. In Little Miami Railroad Co. Stevens, Ohio, 415, of Ohio held Court that where a railroad com Supreme in its under the control of placed, engineer employ pany Avho conductor of directed Avhenthe cars Avere start, it was and when to liable for an stop, received him caused conductor. There a collision tAvotrains occurred in between omission consequence the conductor inform the engineer change places of trains ordered passing company. Exemption Avasclaimed on ground engineer conductor Avere and that fellow-servants, had in taken, consequence contract of the risk of the sendee, of' the conductor; and, for also, public policy bade a in such cases. recovery But the court both rejected To the latter it positions. very observed, that pertinently Avhen Avas the servant had himself been' careful that of action could accrue to him, and that'it right Avasnot likely be careless of that any would lives' and their. because have a merely might action
property right recover received. “If men are for'injuries said influenced,” CHICAGO RAILROAD MILWAUKEE v. ROSS. 393 *14 of Court.
Opinion the. such remote court, considerations to “by be careless of what are to be most careful likely about, has never come under think our -observation. We is policy clearly on the other It side. is a matter of universal observation that, extensiye are any many persons employed, business and the care the surest prudence employer guarantee - kind.” In mismanagement Co. against Railway 3 St. the same court 201, Ohio affirmed the Keary, doctrine and that when a announced, thus decided brakeman in the em of a railroad a train under the control of a ploy was conductor exclusive command, having care injured by was conductor, lessness company responsible,holding (cid:127) that the conductor in such case was the sole and immediate which rested the representative company upon obligation the train with and to skill care. In the course of manage an elaborate said the court that from the nature of very оpinion the contract and the em of service between the company to to under them ployes, company obligation superin tend and control with skill and force care dangerous which their so essentially depended. employed, safetjr conductor, “For “the is ém said the court, purpose,” and in' this he ployed, directly company. They represents contract for and commission -hiscare and skill. They engage to him of the train exercise dominion over the operations which and owner; essentially pertains prerogatives in its exercise he is in stands in the and of the owner, to which the discharge duty man, owner, party the contract him, under service, owes those placed to. whose con lives alone on his His will may depend fidelity. trols intelli and it that.his is the will the owner everything, alone This sеrvice is gence should for this trusted purpose. not common him him. and. the hands under They placed have do duties are with it. His and their duties nothing entirely distinct, both necessary pro separate although duce the result. It' is his io and theirs command, obey execute. a common No service is common admit that does not. and no one is when participation, servants are fellow-servants in control over the other.” placed OCTOBER TERM,
Opinion.of the Court. In & Nashville Louisville Railroad Co. v. Collins, Duvall, considered subject elaborately Court of And it that in held; all Appeals Kentucky. those care, skill, and require operations vigilance performed through instrumentality superintending the invisible never agents, corporation, though actually, yet who always constructively present through represent agents it, whose acts within their are its representative spheres that the rule of acts; is not courts, English to one of its servants inflicted from responsible was not to its full extent neglect fellow-servant, adopted in that State, incon anomalous, there regarded *15 sistent with and principle public policy, unsupported this' consistent reason. In any good upon commenting decision in his Treatise on the Law of Redfield Railways, of the that the declaration speaks emphatic approval in all is to be corporation regarded constructively present its within the of their acts agents scope performed general “ The of mistake or authority. consequences misapprehension “ have led the courts into author, says many point,” at the common instincts of variance with .conclusions greatly un and have tended to reason and interpose humanity, the conduct of shield between railway employes warrantable the the We trust that and the company. responsibility just at no distant of.this construction will reasonableness justice Yol. induce its universal day adoption.” or less States, of other more There are decisions in the courts re- Ohio Kentucky, with those cited from conformity master’s ex- extent,.the to a or less jecting limiting, greater conduct the negligent a servant emption liability the his pres- fellows. We with them holding agree —and conductor of a the case no decision—that ent further requires directs when it movements, train, who commands railway it shall at what start, at it shall shall what stations speed stop, over and control it, has the run, management it, company, employed upon represents acts, from his therefore that, negligent- resulting If such conductor does represent company responsible. RAILROAD v. ROSS. 395 CHICAGO MILWAUKEE
Opinion oí Court. then the without train company, operated any represent-
ative of its owner. we
If, now, thes'e views the relation of conduc- apply tor of a train to the and to the subordinates railway company, under him train, on the objections urged charge court will be of. Its some readily disposed language sentences but its criticism; verbal purport open the conductor and of ‘the that touching company not fellow-servants both were engineer, though employes, sense in decisions; which that is used term in its former of the was the company, standing representative and that the latter train, and stead in-the running in that and that for the for- was, subordinate, particular, latter, mer’s negligence, injured, company was responsible. ' It was not which caused on the that the collision trial disputed the result of the of was injury complained conductor of the to show to the train, freight failing the order the train at South received, had stop until the on the same road Minneapolis gravel coming from an had and the court direction, opposite passed; charged if so and if the found, that did not con- the'jury, they tribute to his his own injury by negligence, liable, the relation of and inferior holding superior created between two operation train; not, of its within the reason of the law, fellow-servants in the same common employ- *16 ment.
As this
our
was,
correct,
charge
judgment,
entitled to recover
the conceded''
of
was
negligence
on other
conductor. The
whether
immaterial;
charge
points
erroneous,
could not have
result;
correct
changed
could not have been otherwise than for the
verdict
jury
therefore, whether
error was
Without
any
plaintiff.
declaring,
on other
it is sufficient to
committed
charge
points,
say
if
error
not reverse the
below an
was
that we-will
judgment
trial
affected the
committed on the
which could
have
ver-
Brook,
with
And,
dict. Brobst v.
Statement Facts. of the conductor of the no instruction gravel requested. given Judgment affirmed. Me. Justice dissenting. Bradley, Justices dissent myself Blatchford Matthews, Gray, We think that the the court. conductor judgment of the railroad train in was a fellow-servant of this case railroad with train. the other on the We employes think hold be to break down that.to otherwise would long established rule with responsibil- regard their servants ity employers of their fellow-servants.
BATCHELOR v. BRERETON Another. APPEAL FROM THE SUPREME OF COLUMBIA. COURT OF THE DISTRICT
Argued 14, November December 1, 1884.Decided S, B, B, joined the wife of a him in deed to H of land of trust S, life, and, time, during the use of her request at on the written S, B, convey might and the written person-as consent of it to such S Afterwards, request writing, or direct in with the written consent of B. W, B deed join, made a of the land to H did not and in only grantor, B was the party, and S was not but which described as seal, signed S and bore her in acknowledged her Held, proper legal manner convey : That the title to latter deed did not land, was not S. power made in execution reserved distribution of related to the case question proper in9, of land in lot sale of proceeds square parcel 455, in under a décree of city (Supreme Washington, Court of the District of Columbia. H. hereinafter
William Brereton Samuel Brereton (also in common of .called Samuel tenants Brereton, Junior,) being to Peter A., wife, Samuel and Sarah executed land, deed land 29, dated ques- Hannay September